Byrd v. Henderson

Ethridge, J., delivered the opinion of the court. The appellee filed her bill against the appellants and certain other parties who are the children and descendants of Robert W. Prine and Nancy J. Prine, alleging that she is the owner of certain lands described in the bill acquired from Nancy J. Walley, who was formerly Nancy J. Prine, a former wife of Robert W. Prine who formerly owned the lands, and that he executed a will bequeathing’ said property to Nancy J. Prine, his then wife, and after executing said will said Robert W. Prine departed this life without having revoked said will or making another; that subsequent to the death of Robert W. Prine, Nancy J. Prine, widow and sole legatee under said will which was duly proven and filed for probate and appears of record, intermarried with one W. R. Walley and thereafter in 1919 the said Nancy J. Walley, who is the same person as Nancy J. Prine mentioned in said will, for a valuable consideration conveyed by warranty deed said lands to R. S. Henderson, said deed appearing of record, and that afterwards, to-wit, on the 28th day of October, 1911, R. S. Henderson for a valuable consideration conveyed said land to Idus L. Henderson, which deed appears of record. It is further alleged that after acquiring said lands that said R. S. Henderson went into possession of said lands, made valuable improvements on said property and exercised all acts of ownership until he conveyed to the complainant, Idus L. Henderson, when complainant wont into possession thereof and held said lands for a period of more than ten years and had a perfectly valid and legal title, and that she is the true, legal, and equi *152 table owner of the said lands and entitled to the immediate possession thereof. It is further alleged that the defendants, W. C. Byrd and Maggie Byrd, are now living in the buildings on the said land and that complainant has demanded that said W. C. Byrd aiid Maggie Byrd vacate said premises and deliver same up to the complainant, which they refuse to do; that said W. C. Byrd and Maggie Byrd have no title, legal or otherwise, to said lands, but that complainant is advised they are claiming to be the owners of said land and in possession; and that their said claim and possession cast a cloud upon the title of the complainant. Complainant then alleged that Robert W. Prine lefi certain parties named in the bill as children but that some of tlie children of Robert W. Prine had died and left named heirs in the bill, and that said defendants are conspiring with the said "W. C. Byrd in retaining possession of the property and making claim to the said property, but by what’authority complainant is'not advised, and praying for process against the defendants and for a cancellation of their claims as clouds upon her title, and for writs of possession to dispossess defendants and repossess complainant. The will referred to in the bill reads as follows: “ State of Mississippi, Greene County, April If, 1902. “I, Robert W. Prine of Greene County, Mississippi, and of sound mind, and memory, make this my last will and testament. “I give, devise and bequeath all of my estate and property, real and personal, as follows: ‘ ‘ Consisting of horses and cattle, sheep and hogs, oxen and wagons, buggy, and all farming utensils, and blacksmith tools and land. “To my present wife, Nancy J. Prine, and her heirs. • I appoint as my executor Nancy J. Prine, my present wife, and my daughter Ellen L. Prine, but if my wife should marry again she shall thereupon cease to be an executor and trustee of m,y will which shall thenceforth *153 take effect, and be executed in the same or in like manner as if the said Ellen L. Prine had originally been appointed the sole trustee and executor. “In witness whereof I have signed, published and declared this instrument to be my last will and testament on this April 14, 1902. “[Signed] Robert W. Prine. “State of Mississippi, Greene County. “The said Robert W. Prine of Greene County, Mississippi, on the 14th day of April, 1902, signed the foregoing instrument and published and declared the same in our presence as his last will, and we, at his request and in his presence and in the presence of each other on . said date, have hereunto written our names as subscribing witnesses thereto. “ [Signed] G. T. Dunnam. “J. M Dunnam.” Said instrument was also acknowledged before a justice of the peace on May 12, 1903, and on November 1, 1903, J. N. Dunnam, one of the subscribing witnesses, made an affidavit to the due execution of the said will and said will was admitted to probate on] the said day. Neither said Nancy J. Prine nor Ellen L. Prine mentioned as executors and trustees under said will qualified as such, and there seems to have been no administration or execution of the will. At the time of the making of the will and until his death Robert "W. Prine occupied the premises with his family, and his widow and children occupied the same thereafter until the marriage of the widow with Walley. Just before the retuim term of the court some of the attorneys for the complainant and the attorneys for the defendants entered into an agreement at Hattiesburg* to continue the case, but a resident attorney of the county, not being advised of the agreement, took a pro confesso against the adult defendants and dismissed the bill as to the minor defendants, but afterwards on being advised of the existence of the agreement these decrees were *154 sot aside by consent and the case reinstated for trial on the docket between the appellants and appellee, but the parties against whom, the bill was dismissed, being the minors named as defendants, were not resummoned to court and were not represented in the trial of the cause. The defendants, who are appellants here, answered the bill and set up- a claim to an undivided interest in the land, claiming under the terms of the will that they were tenants in common with Nancy J. Prine, the widow of the testator. The defendants offered the testimony of the appellants and of the subscribing witnesses to the will to show the circumstances of its execution and the intent of the testator to devise the lands to his wife and children by the last wife of Robert W. Prine as tenants in common. This testimony tended to prove that the testator intended to devise the lands to his wife and his children by his wife, Nancy J. Prine. The testator had been married prior to his marriage with Nancy J. Prine and had a number of children by such marriage, some of whom had left the home and established homes of their own. The will was written by the subscribing witness, George T. Dunnam, who testified that he had lived neighbor to the testator practically all of his life; that testator had been married twice and had children by his first wife and by his secondj wife; that at the time of the making of the will the children by the second wife were small and that one of the children was born some four months after the death of the testator. Dunnam testified that the children by the last marriage ranged from about thirteen years of age down to small children; that witness was more or loss familiar with the business affairs of Rlobert W. Prine and that he drew the will because Prine came over and asked him to assist him in making his will; that Prine stated to the witness, Dunnam, “My oldest heirs by my first wife have had some stuff,” and the witness said, “He led me right up to believe that he wanted his present heirs to have that.” Witness *155 stated that testator meant by his present heirs his wife then living- with him and his children by such marriage —-the children that he had under his roof at the time— that it was the fixed belief of the witness that the testator meant for his present wife, then living, and his little children then under his roof to have the property embraced in the will. The other witnesses testified practically to the same effect but the chancellor excluded thi$ evidence on the theory that the will was plain and unambiguous and had a fixed and definite meaning which could not be explained by oral evidence. After stating this view, the chancellor in his opinion said: “The court might add that if this testimony were competent it would show by a preponderance of the evidence, if not clearly and convincingly, that he did intend to leave this property to his present wife and to all the children by that wife as tenants in common. The misfortune was that the draftsman of the will apparently did not make the meaning clear and instead of expressing the meaning, wrote it right into the jaws of the statute, which makes such words mean a fee-simple title.” The will under consideration was drawn by farmers fin acquainted with legal procedure and technical terms. If the terms are plain and unambiguous taking the whole will into consideration, the court would give them their legal meaning, but if an examination of the whole will shows that it is doubtful what meaning the testator intended to convey by the will, the circumstances surrounding- the parties may be looked to to determine whether the words were used in their legal signification or whether they were intended to be given a different meaning. The will is inartificially drawn. Apparently in one sentence the testator intends to convey to Nancy J. Prine and her heirs. If this stood alone it would be given its legal meaning. However the will has a provision: “I appoint as my executor Nancy J. Prine, my present wife, and my daughter Ellen L. Prine, but if my ivife should marry again she shall thereupon cease to be an *156 executor and trustee of my will which shall thenceforth take effect, and be executed in the same or in like manner as if the said Ellen L. Prine had originally been appointed the sole trustee and executor.” If the testator intended to give his wife, Nancy J. Prine, a fee simple free from any claim or use of his other heirs the provision above quoted would be needless. It indicates that he intended his. estate to be enjoyed by his children'in the event his wife should marry again. The word “heirs” is sometimes used in the sense of children as shown by numerous authorities. In Boone v. Baird, 91 Miss. 420, 44 So. 929, our court recognized this meaning and gave to the word “heirs” in a conveyance a meaning identical with children. In that ease the grantor conveyed a life estate to the wife with remainder to his heirs without naming them. He had one child by his former marriage and the court held that the word “heirs” as used in the conveyance had the meaning of children, and upon the death of the wife the estate passed to the son of the testator. In the course of the opinion (91 Miss. at page 426 [44 So. 929]), the court said: “It is perfectly manifest — too plain for discussion— that the intention of the grantor was to convey to his wife, Mrs. Drucilla Bradley, the life estate in said property, and the life estate only, and that the remainder was limited to his (the grantor’s) heirs, meaning by the word ‘heirs’ manifestly children. The word ‘heirs’ is not used here in its technical sense, but as descriptive of the persons to take” — citing Harris v. McLaran, 30 Miss. 571. In Harris v. McLaran, 30 Miss. 533, the word “heirs” was given a different meaning also from its legal signification and construed to mean personal representative. In 28'Puling Case Law, p. 248, section 216', on construction of wills as regards persons, speaking with particular reference to the use of the word “heirs,” it is said: “A testator may ignore the technical meaning of the word, *157 and in its interpretation such a meaning may be given it as the testator evidently intended it should have, as disclosed by the whole instrument. As a mere matter of construction the word ‘heir’ may be interpreted as the equivalent of ‘child’ when the context so requires.” See, also, Wilberding v. Miller, 88 Ohio St. 609, 106 N. E. 665, L. R. A. 1916A, 718; 21 Cyc. 425; Campbell v. Noble, 110 Ala. 382, 19 So. 28; Lockwood’s Appeal, 55 Conn. 157, 10 A. 517; Seymour v. Bowles, 172 Ill. 521, 50 N. E. 122; Mace v. Cushman, 45 Me. 250. We are of the opinion that the will should be construed in view of the provisions noted above in accordance with the surroundings and circumstances existing at the time, and in accordance with law bearing on the interpretation of ambiguous instruments, and that therefore the court below erred in excluding the evidence offered'by the defendants. Appellants also insist that the other heirs of Robert W. Prine by Nancy J. Prine should be made parties to the suit, and that the court could not dispose of the case without such heirs being brought into court as defendants, and that the defendant could not bring them in. Ordinarily the absence of the parties who ought to be complainants or defendants can only be raised by plea setting forth the names and relations of the parties, showing the necessity for their appearing in court. It is not necessary now to decide whether we would reverse on this ground alone, but we are of opinion that the better and safer practice would be to have all the parties in interest before the court. See Marx v. Hale, 119 Miss. 410, 81 So. 119. As the case must be reversed for the reasons set forth above, we think the entire controversy ought to be settled in one suit, and all of the parties interested brought into court either as complainants or defendants. Reversed and remanded.